Zhang v Minister of Immigration HC Auckland CIV 2010-404-5278

[2010] NZHC 1466

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2010-404-005278

UNDER  the Judicature Act 1972

IN THE MATTER OF     an application for review of the decision to execute a Removal Order served on 9th August 2010

BETWEEN  JIAN ZHANG Applicant

ANDMINISTER OF IMMIGRATION First Respondent

ANDMATHEW PAUL SIMPSON Second Respondent

Hearing:         12 August 2010

Appearances: J Nguy for Applicant

A Longdill for Respondents

Judgment:      13 August 2010 at 11.30 a.m.

JUDGMENT OF VENNING J

This judgment was delivered by me on 13 August 2010 at 11.30 am, pursuant to Rule 11.5 of the

High Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors:           Jesse & Associates, Auckland  jesse[email protected]

Copy to:            Meredith Connell, Auckland  anna[email protected]

ZHANG V MINISTER OF IMMIGRATION AND ANOR HC AK CIV-2010-404-005278  13 August 2010

[1]      The  applicant  seeks  orders  restraining  the  respondents  from  executing  a removal order served on him on 9 August 2010 and deferring execution of that order until the substantive proceedings are concluded.

[2]      The application is opposed by the respondents.   The applicant is due to be removed this evening.

[3]      The applicant is a 29 year old Chinese man.  He has been in New Zealand since 24 May 2002.   The applicant was initially granted a student permit which expired on 31 January 2003.   Since then he has been issued various student and visitors permits, the last of which expired on 28 August 2007.  On 9 August, with the assistance of a consultant, he made an  application to the Associate Minister of Immigration for an urgent Special Direction.  On the same day he was located by the police on unrelated matters and served with a removal order once identified as an overstayer.

[4]      The second respondent conducted a humanitarian interview under s 58 in order to assess whether to continue with the removal action.

[5]      The applicant raises the following exceptional circumstances to support his case for cancellation of the removal order:

•         he has been in New Zealand for more than eight years;

•         he will have difficulty adapting to life in China;

•he is living in a stable relationship with his de facto partner of seven years.  They intend to marry at the end of the year;

•         he  has  an  urgent  application  to  the  Associate  Minister  to  grant  a

Special Direction.

[6]      The interim relief was sought on the basis the applicant had a respectable chance of success in relation to his application for substantive relief.

[7]      In light of the information provided by Ms Longdill for the respondents in opposition I am satisfied that the applicant cannot make out such a case.

[8]      Ms Longdill provided the Court with a copy of a letter from the Minister confirming that the applicant’s request for a Special Direction had been declined this afternoon.

[9]      Further  Ms  Longdill  provided  the  Court  with  a  copy  of  the  interview conducted by the second respondent.  It is apparent from the record of that interview that the matters the applicant relies on, including the circumstances of the applicant’s relationship with his de facto partner were disclosed to and before the second respondent when he confirmed the decision to remove.  Further, the applicant’s de facto partner is herself at presently strictly an overstayer as her permit has expired.

[10]     The Court of Appeal have recently confirmed in the decision of Parmanadan

& Ors v Minister of Immigration & Anor[1] that the amendments to s 58 were intended to reduce the scope of challenge to s 58 decisions.

[1] Parmanadan & Ors v Minister of Immigration & Anor [2010] NZCA 136.

[11]     There is nothing in the information before the Court to suggest that the decision the second respondent made under s 58 can be the subject of successful challenge in this case.

[12]     Mr Nguy effectively accepted that the best point for the applicant was the request to the Minister and that now that has been considered and declined the application for interim relief was significantly undermined.

[13]     Despite everything that Mr Nguy advanced on behalf of the applicant, the applicant  fails  to  satisfy  the  Court  that  there  is  any  realistic  prospect  of  him achieving final relief in this case.

[14]     The application for interim relief is declined.

[15]     I make no order for costs in the circumstances.

Venning J